Saturday, 10 May 2008

EU TFEU: European public prosecutor

Considering the criticism levelled at the European Commission and the European Union in general for mismanagement of EU funds by authorities of the member states, it should come as no surprise that the Commission would like to see outlays for inexistent olive groves and unbuilt roads recovered and the perpetrators diligently pursued.

The Treaty of Lisbon fails to bring the new provision on the European public prosecutor’s office under qualified majority voting and the ordinary legislative procedure, but it enables a group of nine or more member states to establish enhanced cooperation.


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Europe Day brought EU citizens one valuable, although belated, gift: Consolidated versions of the Treaty on European Union (TEU) and on the Treaty on the Functioning of the European Union (TFEU) were published in the Official Journal of the European Union, which makes them feel somewhat more official than the Council’s consolidated version made available 16 April 2008.

From now on we are going to use OJ 9.5.2008 C 115 as our reference.

We look forward to the arrival of these consolidated versions of the Treaty of Lisbon in book form to our distant shores.

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Article 86 of the Treaty on the Functioning of the European Union (TFEU) forms the basis for the eventual establishment of a European public prosecutor. The Article is found in OJ 9.5.2008 C 115/82–83. The location of the provision is added from the table of equivalences (page 368–371):

Part Three ‘Policies and internal actions of the Union’

Title V TFEU ‘Area of freedom, security and justice’

Chapter 4 ‘Judicial cooperation in criminal matters’

Article 86 TFEU

1. In order to combat crimes affecting the financial interests of the Union, the Council, by means of regulations adopted in accordance with a special legislative procedure, may establish a European Public Prosecutor's Office from Eurojust. The Council shall act unanimously after obtaining the consent of the European Parliament.

In the absence of unanimity in the Council, a group of at least nine Member States may request that the draft regulation be referred to the European Council. In that case, the procedure in the Council shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council for adoption.

Within the same timeframe, in case of disagreement, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft regulation concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in Article 20(2) of the Treaty on European Union and Article 329(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.

2. The European Public Prosecutor's Office shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of, and accomplices in, offences against the Union's financial interests, as determined by the regulation provided for in paragraph 1. It shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences.

3. The regulations referred to in paragraph 1 shall determine the general rules applicable to the European Public Prosecutor's Office, the conditions governing the performance of its functions, the rules of procedure applicable to its activities, as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions.

4. The European Council may, at the same time or subsequently, adopt a decision amending paragraph 1 in order to extend the powers of the European Public Prosecutor's Office to include serious crime having a cross-border dimension and amending accordingly paragraph 2 as regards the perpetrators of, and accomplices in, serious crimes affecting more than one Member State. The European Council shall act unanimously after obtaining the consent of the European Parliament and after consulting the Commission.

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In Article 2, point 67, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/62):

“67) Article 66 shall be replaced by Article 61 G, as set out in point 64 above, and Articles 67 to 69 shall be repealed. The following Chapter 4 and Articles 69 A to 69 E shall be inserted. Articles 69 A, 69 B and 69 D shall replace the current Article 31 of the Treaty on European Union, as set out above in point 51 of Article 1 of this Treaty: …”

The IGC 2007 then presented the wording of Article 69e TFEU (ToL) otherwise as above, but the clarifying words ‘in the Council’ were later added to the second subparagraph of the first paragraph (OJ 17.12.2007 C 306/65–66). In the consolidated version Article 69e was to become Article 86 TFEU. Cf. TFEU table of equivalences, OJ 17.12.2007 C 306/210.

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The provisions on judicial cooperation in criminal matters are generally based on the Constitutional Treaty, with the modifications introduced by the IGC 2007 Mandate (Council document 11218/07, point 19(l), page 8):

“l) In the Chapters on judicial cooperation in criminal matters and on police cooperation, as amended in the 2004 IGC, in the Articles on mutual recognition of judgments, minimum rules on definition of criminal offences and sanctions, the European Public Prosecutor, and police cooperation, a new mechanism will be inserted enabling Member States to go forward with adopting measures in this field while allowing others not to participate (see point 2)(c) and (d) of Annex 2).Moreover, the scope of the Protocol on the position of the United Kingdom and Ireland (1997) will be extended so as to include, in relation to the UK, and on the same terms, the Chapters on judicial cooperation in criminal matters and on police cooperation. It may also address the application of the Protocol in relation to Schengen building measures and amendments to existing measures. This extension will take account of the UK's position under the previously existing Union acquis in these areas. Ireland will determine in due course its position with regard to that extension.”

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The mechanism enabling member states to go forward while allowing others not to participate was then duly detailed in point 2(d) of Annex 2 (page 16).

Given the determining influence of the IGC 2007 Mandate, in this and most other questions the intergovernmental conference was actually concluded before it started, leaving it to the specialist lawyers of the Council and the member states to wrap up the coming Lisbon Treaty technically before the agreed amendments could be signed.

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The possible European public prosecutor is a new office, so there is no directly corresponding provision in the current treaties.

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We look at the previous stages of the treaty reform process.

The European Convention proposed a European public prosecutor’s office with a wide mandate: to combat serious crime having a cross-border dimension, as well as crimes affecting the interests of the Union. But, due to resistance from some members (or, in fact, member states), the proposed new office came at the price of unanimity in the Council.

Here is Article III-175 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/61):

Article III-175 Draft Constitution

1. In order to combat serious crime having a cross-border dimension, as well as crimes affecting the interests of the Union, a European law of the Council of Ministers may establish a European Public Prosecutor's Office from Eurojust. The Council of Ministers shall act unanimously after obtaining the consent of the European Parliament.

2. The European Public Prosecutor's Office shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of and accomplices in serious crimes affecting more than one Member State and of offences against the Union's financial interests, as determined by the European law provided for in paragraph 1. It shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences.

3. The European law referred to in paragraph 1 shall determine the general rules applicable to the European Public Prosecutor's Office, the conditions governing the performance of its functions, the rules of procedure applicable to its activities, as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions.

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The IGC 2004 narrowed the primary scope of the European public prosecutor’s office to crimes affecting the financial interests of the EU, although a new fourth paragraph opened up the possibility to extend the powers of the office, at the same time or later.

This is the text of Article III-274 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/121):

Article III-274 Constitution

1. In order to combat crimes affecting the financial interests of the Union, a European law of the Council may establish a European Public Prosecutor's Office from Eurojust. The Council shall act unanimously after obtaining the consent of the European Parliament.

2. The European Public Prosecutor's Office shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of, and accomplices in, offences against the Union's financial interests, as determined by the European law provided for in paragraph 1. It shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences.

3. The European law referred to in paragraph 1 shall determine the general rules applicable to the European Public Prosecutor's Office, the conditions governing the performance of its functions, the rules of procedure applicable to its activities, as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions.

4. The European Council may, at the same time or subsequently, adopt a European decision amending paragraph 1 in order to extend the powers of the European Public Prosecutor's Office to include serious crime having a cross-border dimension and amending accordingly paragraph 2 as regards the perpetrators of, and accomplices in, serious crimes affecting more than one Member State. The European Council shall act unanimously after obtaining the consent of the European Parliament and after consulting the Commission.

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The provision on the European public prosecutor’s office is one more example where the member states have been unable to reach an unanimous agreement to move to qualified majority voting (QMV) in the Council and the ordinary legislative procedure (co-decision), with a fully developed role for the European Parliament.

In the face of long-standing opposition, no unanimous decision would have materialised in the Council in a foreseeable future.

On the other hand, certain member states feel strongly that the fight against serious cross-border crime, or at least crimes affecting the financial interests of the EU, should be stepped up by the means of more effective action.

This Gordian knot was cut by the IGC 2007 Mandate and the resulting Article 86 TFEU, by enabling a group of at least nine member states the option to forge ahead with enhanced cooperation. The worst curses of unanimity can be avoided, when unwilling member states are unable to prevent the progress of others, but are spared the discomfort of being dragged into arrangements they dislike.

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The discussion date back to at least the European Convention, but here we are satisfied with a small sample of comments and views post Lisbon.

United Kingdom

In the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007), Steve Peers commented on what was to become Article 69e TFEU (ToL), Article 86 TFEU (page 19):

“This is a new provision as compared to the current Treaties. The additions to this Article in the draft Reform Treaty (as compared to the Constitutional Treaty) provide for possibility of a group of Member States applying a ‘flexibility’ procedure in the event of a veto by one or more Member States. This is distinct from the separate power of the UK, Ireland and Denmark to opt out of proposals at the outset.”

The JHA analysis and other useful Statewatch analyses are available through:

http://www.statewatch.org/euconstitution.htm

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The Foreign and Commonwealth Office (FCO) published another convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), offering the following summary of the results with regard to Article 86 TFEU, Article 69e TFEU (ToL) in the original Lisbon Treaty:

“New. Enables the Council, by unanimity and with EP consent, to establish a European Public Prosecutor’s Office to investigate and prosecute crimes affecting the EU’s financial interests. A passerelle enables the European Council, by unanimity and with EP consent, to extend the powers and functions of the EPP to include serious cross-border crime.”


The FCO comparative table is available at:

http://www.official-documents.gov.uk/document/cm73/7311/7311.asp

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The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) dedicates page 45 to 48 to a presentation of a history of varying degrees of, including some reasons for, official British opposition under the heading ‘European public prosecutor’.

The Library Research Paper 07/86 is available at:

http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf

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The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discusses ‘Police and judicial cooperation in criminal matters’ at length in Chapter 6 (from page 139). Under ‘Eurojust and a European Public Prosecutor’ the Committee documented a fairly nuanced exchange of views by witnesses on the European public prosecutor, on pages 151 to 153.

The general feeling among witnesses and the Committee seemed to be that the European public prosecutor’s office would be created under the provisions on enhanced cooperation, by a group of states, but without British participation.

There was no definitive answer to the question if the extension of the European public prosecutor’s powers to other serious cross-border crime fell under the same rules for enhanced cooperation, or if the fourth paragraph was meant to uphold the unanimity rule in case nine or more states included the extension of powers in the original draft regulation or a later amending proposal.

The report is accessible at:

http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf

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Sweden

The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, under ‘En europeisk åklagarmyndighet’ refers to the protracted debate about the need for a European public prosecutor, summarising opposing views, and the government ends up with the conclusion to wait and see (pages 323 to 325).

The consultation paper ’Lissabonfördraget’ is available at:

http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf

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Finland

The Finnish ratification bill ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp) offers a detailed description of Article 69e TFEU (ToL), renumbered Article 86 TFEU on pages 202–203.

In addition, there is a value judgment on page 89: Finland has not found the establishment of the European public prosecutor’s office to be necessary, but the agreed arrangement is acceptable.

The bill is available at:

http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf

The Swedish language version of the ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rp), presents the same remarks on page 205, with the value based judgment on page 91.

The ratification bill in Swedish can be accessed at:

http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf


Ralf Grahn